PERSONAL

• Wills and estate planning
• Powers of Attorney
• Applications for Probate and Letters of Administration
• Family maintenance applications
• Applications for provision from deceased estate to the Supreme Court and County Court
• Guardianship and Administration applications

WILLS

Will – Making a Will – Beneficiary – Executor – Process – Probate – Claim – Entitlement – Assets – Will Lawyers Victoria – Will Lawyers Kew – Will Lawyers Melbourne – Estate – Estate Lawyers Melbourne – Estate Lawyers Kew

1. Introduction – What is a Will?

A Will, when drafted correctly, is a legally binding document that records your wishes to make provision for others to receive your assets after you have passed away.

Without a Will your estate is governed by legislation. This means that assets could be claimed by relatives who you do not wish to benefit under your Will, that you would not have appointed an Executor who takes the role of administering and making final decisions about your estate, and that the cost of settling your Estate may be more than if you had a Will.

2. Commonly used Terms

What is an Executor? – An Executor of a Will is the person named in a Will who is responsible for the administration of your Will and making final decisions about your Estate.

What is a Beneficiary? – A Beneficiary is someone named in a Will as entitled to receive an asset pursuant to the Will.

What is a Bequest? – A Bequest is the act of leaving a gift to someone when you pass away.

What is Testamentary Capacity? – Testamentary Capacity, simply put, means that someone has the mental capacity to make a Will.

3. Do I need a Will?

The benefits of having a valid Will when you pass away are that there is a record of your wishes and who you want to benefit once you pass away. It often also means that your Estate can be finalised quickly.

It is therefore recommended that all those that have testamentary capacity and are over the age of 18 years have a Will. It is a relatively inexpensive way to ensure that your wishes are known in the event that you predecease your loved ones.

Furthermore, there may be taxation benefits of having a Will and you should consult your accountant regarding these potential benefits.

4. When should I change my Will?

Making a new Will automatically cancels out your old one and you can change your Will as often as required. You should review your Will every couple of years or when you feel your personal circumstances have changed.

Marriage and divorce affect the validity of your Will and in either of these occasions it is prudent to review your Will. You should also consider reviewing your Will when you enter or end a domestic relationship or separate after marriage.

Further, having children may also affect the validity of your Will and is a time when your intentions may change. You may also wish to consider a guardianship clause in your Will indicating your intentions regarding the legal guardian of your children if you pass away whilst they are under the age of 18 years.

You should also review your Will if you buy a significant asset or get involved in a new business, company or trust.

5. Commonly asked Questions

Home-made Wills and Will Kits – are they effective?

Home-made Wills and Will kits are often problematic as they have not been prepared by a solicitor who understands the requirements of making a legally binding Will.

A solicitor preparing your Will ensures that the Will is drafted correctly, has been witnessed correctly, reflects your intentions at the time, will advise you of any foreseeable issues that may arise at the administration of your Estate and can advise you of any potential challenges to your Estate.

What is the difference between a Will and a Power of Attorney?

Wills and Powers of Attorney are commonly confused although they are two very distinct legal documents. A Power of Attorney is essentially a document that operates during the makers lifetime to allow the nominated person (their Attorney) to act on their behalf. Comparably, a Will comes into effect once someone has passed away and relates to the distribution of their Estate. Furthermore, a Power of Attorney ceases to be effective and cannot be used when the person who made the Power has passed away.

Will the government receive my assets if I do not have a Will?

If there is no valid Will at the time of death the Estate will be administered according to legislation. This does not necessarily mean that the government will receive your assets however you will not have control over who does receive them as the legislation at the time of your death will dictate the distribution.

6. Cost for making a Will

Please telephone Ms Helaine Pandeli on 03 9857 0666 or email helaine@pandeli.net.au if you would like an estimate of the costs to prepare your Will.

CHALLENGING AN ESTATE – FAMILY MAINTENANCE

Claim –  Distribution – Estate Challenge – Part IV – Entitlement – Probate – Estate Lawyers Victoria – Estate Lawyers Kew – Estate Lawyers Melbourne – County Court – Supreme Court – TFM – Testators Family Maintenance – Family Maintenance – Dependents

1. Introduction

There are a number of grounds upon which a Will may be challenged including (but not limited to) argument that the Testator (person who made the Will) did not have testamentary capacity, that the Will was made under duress or that a family member was not adequately provided for.

The most common grounds for a challenge to an Estate is that of Testator’s Family Maintenance also called claims pursuant to Part IV of the Administration and Probate Act (herein “the Act”). This means the Court has the right to vary the terms of a Will if it can be established by an eligible person that the Testator had a duty to make provision or further provision for that person.

These types of claims are usually heard in the Victorian Supreme Court or the Victorian County Court and are often mediated before being listed for hearing in Court.

2. Who can make a claim against an Estate?

An eligible person can bring a claim against an Estate. An eligible person is described in the Administration and Probate Act and can include a spouse or domestic partner of the deceased, a child of the deceased or another financial dependant of the deceased. Note that this is not an exhaustive list of those who may be considered eligible persons.

An applicant (usually the eligible person) normally has six months from the date of the Grant of Probate/Letters of Administration within which to make a claim against the Estate.

3. What does the Court consider?

The Court will consider various factors in determining a case commenced pursuant to Part IV of the Administration and Probate Act including:

4. The size of the Estate;
5. The financial resources (including earning capacity and the financial needs) of the eligible person and any beneficiary of the Estate;
6. The deceased’s Will;
7. Any evidence of the deceased’s reasons for making the dispositions in the Will;
8. The nature and length of the relationship between the deceased and the eligible person;
9. Any obligations or responsibilities of the deceased to the eligible person and the beneficiaries of the Estate;
10. Any physical, mental or intellectual disability of any eligible person or any beneficiary of the Estate;
11. The age of the eligible person;
12. Any contribution (but not for adequate consideration) of the eligible person to the building up the Estate or the welfare of the deceased or the deceased’s family;
13. Any benefits previously given by the deceased to any eligible person or to any beneficiary;
14. Whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;
15. The liability of any other person to maintain the eligible person;
16. The character and conduct of the eligible person or any other person;
17. The effects a family provision order would have on the amounts received from the deceased’s Estate by other beneficiaries;
18. Whether the deceased had a moral duty to provide for the eligible person’s proper maintenance and support and whether the distribution of the Estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
19. Any other matter the Court considers relevant.

4. What is the process for making a Part IV claim?

To make a claim under Part IV of the Act a solicitor should be engaged to make the appropriate application in the appropriate Court. Before the matter is listed for a hearing in either Court usually a mediation must be attended by all parties.

A mediation is a confidential meeting between all parties facilitated by a mediator to assist parties in coming to an agreement regarding their dispute. Agreement (formalised as a settlement) is not compulsory but is often reached to avoid the cost and delays of litigation.

Please telephone Ms Helaine Pandeli on 03 9857 0666 or email helaine@pandeli.net.au if you would like to discuss an Estate matter.